Hawke's Bay flood protection works

Cyclone Gabrielle created significant loss and damage to the Hawke’s Bay region in February 2023. Flooding resulted in significant areas of land becoming no longer safe to inhabit without the development of new stop banks and other works to protect homes and communities from future flooding.

The Government has made a short-term law change to the Resource Management Act 1991 (RMA) and associated regulations, and plans through the Severe Weather Emergency Recovery Legislation Act 2023 (SWERLA) to speed up flood protection works in Hawke’s Bay.

Why the Order is needed

The Hawke’s Bay Regional Recovery Agency developed the Hawke’s Bay Regional Recovery Plan, which set out the outcomes, priorities, actions and funding needed for the region’s recovery. The recovery plan identified flood protection works and mitigation, achieved through an Order in Council, as a key action for the region’s recovery.

The Order will ensure that people and communities in Hawke’s Bay can recover from the effects of Cyclone Gabrielle and are protected against future events.

The Government has introduced a land classification system for use in regions impacted by severe weather.

Under this system:

• Repairs to the property’s previous state are sufficient to manage future severe weather risks on land classified as category 1.
• Community level interventions are considered effective to manage future severe weather event risks on land classified as category 2C.
• Property level interventions (and possibly community level interventions) are needed to manage future severe weather event risks on land classified as category 2P.
• Land classified as category 2A has the potential to fall within categories 2C and 2P. However, further assessment is required.

The flood protection works this Order enables will allow about 975 properties, which are currently categorised as Category 2A or Category 2C, to be recategorised as Category 1 to reflect their reduced risk level. The flood works will also protect the Awatoto industrial area where Napier’s wastewater treatment plant is located.

The flood protection works require resource consents under the Resource Management Act 1991 (RMA). Due to the complexity of these consents, a public notification process would usually be required. This process can take up to 9 months for a decision to be issued by the consent authority, with potentially a further 12 months or more required if the decision is appealed to the Environment Court.

The Order will help consent applicants to avoid these delays and give them greater certainty by:

• Specifying that any consents required are processed as a controlled activity. This means that the consent must be granted but is subject to conditions to manage its environmental effects.

• Providing a streamlined process for controlled activity resource consents with reduced resource consent application requirements.

• Replacing public notification requirements with a process for affected parties to make written comments. This is the same approach followed by previous Orders enacted earlier in the recovery.

• Including conditions which ensure engagement with iwi, hapū, and Māori occurs (see clause 4 and clause 6 of Schedule 2).

• Requiring the consent authority to delegate functions, duties, and powers in relation to a resource consent for flood protection works to a hearings commissioner (clause 10).

• Preventing appeal rights under the RMA, although appellants are still able to seek a judicial review in the High Court.

• Streamlining the work required for preparing resource consent applications, while ensuring there are no environmental shortcuts.

The Order will be limited to consent applications that local authorities in Hawke’s Bay have lodged for eight specified sites. These sites are in Wairoa, Whirinaki, Waiohiki, Ohiti Road/Omāhu, Pākōwhai, Havelock North, Pōrangahau and Awatoto. The maps and coordinates of the locations of the flood protection works are set out in Schedule 1 of the Order in Council.

What works the Order applies to

The project works covered by this Order include:

• The construction of stop-banks, culverts, retaining walls, bridge works, pump stations, stream alignments and earthworks.
• Activities that are concerned with the construction or reinstatement of, making safety enhancements to, or improving the resilience of land and flood protection infrastructure.

The Order does not allow an existing consent to be varied. If a consent holder wants to change or cancel the conditions of an existing resource consent, they will need to use the standard s.127 RMA process.

The Order came into effect on 7 June 2024 and expires on 31 March 2028. This is the maximum possible duration because the SWERLA will expire on 31 March 2028.

The Ministry for the Environment will undertake a formal review of the Order in Council by July 2025 to ensure that the Order continues to meet the statutory tests in the SWERLA.

The Hawke’s Bay local authorities intend to secure resource consents in time for construction of the flood protection works to occur in two tranches. The first tranche will start in October 2024. The second tranche will start in mid-2025.

When the consent authority has received a resource consent application, they will notify the following groups or persons outlined in clause 15 that an application has been lodged and where they can find a copy.

The consent authority will invite those groups or persons to make written comments on the application within 10 working days after the date on which the invitation is given.

This Order in Council meets the purpose of the SWERLA, because it assists councils and communities to focus on planning, rebuilding and recovery, including: 

• The rebuilding of land, infrastructure, and other property of affected communities or of any affected persons. 
• Safety enhancements to, improvements to the resilience of, that land, infrastructure, or other property. 
• Facilitating the restoration and improvement of the economic, social, and cultural well-being, and enhancing resilience, of affected communities or of any affected persons. 

To ensure the flood works meet appropriate environmental standards, the Order includes a schedule of resource consent conditions requiring consent applicants to comply, as far as practicable, with relevant parts of the following technical guidelines, standards and management plans:

• The Hawke’s Bay Regional Council – Hawke's Bay Waterway Guidelines: Stormwater Management (May 2009) to ensure flood protection works enabled by this Order are designed in accordance with the preferred design by Hawke’s Bay Regional Council (HBRC).
• The Hawke’s Bay Regional Council – Hawke's Bay Waterway Guidelines: Erosion and Sediment Control (April 2009) to support the design of flood protection works to reduce the impacts of vegetation and soil disturbance on the surrounding environment.
• The Hawke’s Bay Regional Council – Regional Pest Management Plan 2018-2038 (February 2023) to reduce the actual or potential impacts the flood protection works will have on indigenous flora and fauna in the supporting environment.
• The Hawke’s Bay Regional Council – Environmental Code of Practice for River Control and Waterway Works (February 2017) to ensure the flood protection works follow the environmental standards for river control and drainage works as required by HBRC.
• The New Zealand Standard Acoustics – Construction Noise (NZS 6803:1999) to support the flood protection works meeting the required construction noise requirements and managing the impacts.
  
  A copy of the standards can be viewed in person at 8 Willis Street, Wellington 6011. Alternatively, a digital copy can be bought on the Standards New Zealand website.

The Ministry has included these technical documents in the Order in full and without changes. This is because it would be difficult to identify specific sections, because their relevance is context specific. The technical documents are referred to in the schedule of consent conditions which forms part of the Order. Consent holders will need to consider the full guidelines to check and understand their obligations.